This book is about royal wardship and property rights in Britain from 1485 to 1660. Under the Tudors and later the Stuarts, the Crown strained to re-establish its archaic ‘feudal’ right to take temporary custody of lands held of it by certain freehold tenures and which had descended to an underage heritor. It also re-asserted the associated right to take custody of the person of the heritor (the ward) until they reached the age of majority (twenty-one for males, fourteen or sixteen for females) and, where they were unmarried, the right to choose their marriage partner. In so doing, the motivation of the Crown was determinedly fiscal. It profited from selling the ward back to their family, or to a third party who in turn profited from disposing of the ward’s marriage, itself a saleable commodity. The Crown also had the right to collect rent from the ward’s lands although again, it usually sold this right to a third party, or back to the ward’s family. Finally, not all freehold tenures incurred wardship. The two most common tenures were ‘knight-service in capite’ (hereto referred to as knight service) which did incur wardship, and ‘common socage’ (socage) which did not.

In England, the administrative and tenurial framework underpinning wardship expanded to the point where on the eve of the civil war, around 200 children (drawn from the nobility and gentry), were entering the jurisdiction of the Court of Wards each year, and the court came to occupy a central part of the fiscal and legal apparatus of English government – literally so. Overleaf is a plan of Westminster printed in 1687. Facing south, the Court of Wards is marked (some forty years after it had ceased to operate), just at the south east corner of Westminster Hall, which housed the Court of Chancery and the superior common law courts. Directly to the East of the Court lay St Stephen’s Chapel, where the House of Commons had sat since 1547. Strangely though, despite its importance, the Court has not been the subject of a systematic history since the 1950s and this book is partly intended to fill that gap.Footnote ¹

Figure 1.1 , Plan of Westminster, 1687

Source: Francis Sandford, The History of the Coronation of the Most High, the Most Mighty, and Most Excellent Monarch, James II (London: Thomas Newcomb, 1687).

Figure 1.1Long description

The regions labeled in the plan include the Westminister Abbey at the center, the Court of Wards to its southeast, the Saint Stephen's Chapel, a little further to the south of the Court, the Old Palaceyard to the Abbey's southwest, the Dean's yard to its northwest, and the Church yard to its northeast. The first part of the framed description below the plan details the regions marked on it. The second part reads, But more particularly the way from the hall to the church as it was spread with cloth and railed in, and the several stations in which His Majesties troops of horse and regiments of footguards were posted on both sides the said rail, on the day of the coronation.

The book’s primary purpose, though, is to incorporate a history of wardship into analyses of English and British institutional development during the sixteenth and seventeenth centuries – development which, in some readings, set Britain on a unique path, culminating in the industrial revolution and the dawn of modern economic growth. Prior to the industrial revolution, per capita income growth everywhere had been either very slow over the long run, or entirely stagnant. Certainly, some economies had enjoyed short-term periods of robust growth and increasing living standards – the Dutch Golden age, for instance, or the Song dynasty in China – but these episodes were geographically limited and had all invariably ended in a period of stagnation or decline.Footnote ² What distinguishes the industrial revolution is that growth rates have been sustained over the long term. Over the nineteenth and twentieth centuries, real wages in the West have grown by a factor of at least 30, and once technological improvements in goods and services are accounted for, then the increase in real wages may have been anything up to a factor of 100.Footnote ³ Other global regions have now followed suit, the most spectacular example in living memory being China, where hundreds of millions of people have been lifted out of grinding poverty since Deng Xiaoping initiated reforms in 1978.

As important as the industrial revolution was, however, its origins remain poorly understood and nothing akin to a consensus can be said to have emerged. Some have suggested that it was the outcome of new ideas and ways of thinking that emerged out of the Scientific Revolution and/or the Enlightenment.Footnote ⁴ In a similar vein, Gregory Clark has proposed that England industrialised first because middle class values of thrift and hard work percolated down the social ladder.Footnote ⁵ Conversely, others view the roots of the industrial revolution as essentially economic. Stephen Broadberry and Bishnupriya Gupta, for example, argue that high wages in England (relative to its then European and Asian counterparts) incentivised the invention and adoption of capital-intensive methods of production which once established proved to be more susceptible to sustained technological improvement than methods based on traditional handiwork.Footnote ⁶ Bob Allen has proposed a similar argument, suggesting that the unique structure of factor prices in the English economy incentivised the development of technologies that substituted capital and fuel for labour, which, he suggests, characterises the most important inventions of the Industrial Revolution.Footnote ⁷

A third account has emerged from new institutional economics, which argues that the key determinant of long-term economic performance are institutions – in effect the rules of the game, be they formal laws or informal norms of behaviour, and their enforcement mechanisms. These rules in turn form the constraints and incentives that shape human/economic behaviour. In the context of industrialising England, it is argued that the critical event was the Glorious Revolution of 1688, when parliamentary grandees invited the Dutch stadtholder William III of Orange to invade and depose the Catholic James II. The constitutional changes this augured, by which the putative instruments of Crown absolutism were abolished, and parliament’s role in executive government permanently guaranteed, meant that English subjects (later British) benefited from uniquely secure property rights and reliable contracting. Enabled to engage in ever more sophisticated business ventures and confident that the fruits of their labour would accrue to them rather than to stronger neighbours or a predatory state, individuals were incentivised to engage in ever more productive activities and investments that would ultimately result in the industrial revolution. Mancur Olson provided the clearest summary:

Daron Acemoglu and James Robinson also suggest that ‘[England] had a revolution that transformed the politics and thus the economics of the nation … culminating in the Industrial Revolution’.Footnote ⁹

Within this historiography, Douglass North and Barry Weingast’s 1989 Journal of Economic History paper is foundational, and although our empirical knowledge has progressed considerably in the intervening thirty years, this paper, as well as the myriad critical responses it has provoked, remains the most convenient entry point to a detailed examination of the argument. North and Weingast start from the premise that prior to the Glorious Revolution in 1688, the monarchy was not constrained by any substantive judicial or executive controls. It was, however, burdened by revenue demands, prompting the Crown to engage in a ‘systematic search for and expropriation of quasi-rents in the economy’ (p. 811), involving schemes such as awarding monopolies, exploiting ‘purveyance’ (ostensibly the requisitioning of goods to supply the Crown’s household and the army), wardship and outright seizure of property (pp. 811–12). Although the civil war led to some change (especially the abolition of Star Chamber and ‘land tenure modifications’, p. 814), in essence, little changed, and the Crown was still free to act arbitrarily, and to re-write property rights and/or contracts to its own benefit (p. 815).

Instead, it was the Glorious Revolution which was of primary importance. In its immediate aftermath, the Crown’s prerogative courts were abolished, and the independence of the judiciary guaranteed: ‘the supremacy of the common law courts, so favourable to private rights, was thereby assured’ (p. 816). Sovereignty was viewed as no longer residing with the king alone, but with the ‘king in parliament’, permanently guaranteeing the role of Parliament in executive government and re-affirming its exclusive authority to raise taxes. Parliament itself, however, was also constrained from acting arbitrarily, in part the same institutional changes which constrained the Crown (such as the common law courts), but also by the remaining executive powers of the Crown. In sum, these changes meant that the government could credibly commit to secure private rights, as illustrated by the dramatic increase in government borrowing conjoined with a decline in the interest rates charged on government debt, falling from 14% immediately after the Glorious Revolution, to 3% in 1731 (p. 824). The inference drawn is that creditors could now reliably expect the government to honour its obligations and although wary of claiming too much, North and Weingast suggest that the corollary of secure property rights was an increase in the expected returns to investment and so in turn an increase in the incentive to invest: the Glorious Revolution was handmaiden to the Industrial Revolution.

Since this paper was published, essentially every component of the North and Weingast thesis has been challenged. Broadly speaking, these counter-arguments can be divided into five categories, the third and fourth ones being more sympathetic to North and Weingast’s overall research agenda than the first, second and fifth:

1. (1) Interest rate movements after 1688 do not support the argument that the security of property rights had improved.

2. (2) That in any case, property rights had been secure long before 1688.

3. (3) That changes of the type discussed by North and Weingast were important, but that they cannot be attributed exclusively to the Glorious Revolution, and its immediate aftermath.

4. (4) That North and Weingast were right to isolate the Glorious Revolution as the key event, but not necessarily for the right reasons.

5. (5) That the link posited by North and Weingast between the Glorious Revolution and the Industrial Revolution is a tenuous one.

In detail:

1. (1) Some have queried whether changes in governmental and private interest rates adequately support North and Weingast’s argument. Stephen Quinn, for example, observes that private interest rates remained high for an extended period after the Glorious Revolution, indicating that private rights were still not easily enforced.Footnote ¹⁰ Similarly, Nathan Sussman and Yishay Yafeh argue that interest rates remained ‘fairly high for several decades following the Glorious Revolution’, and that the British government’s borrowing costs remained roughly the same as other European countries during most of the eighteenth century.Footnote ¹¹ However, the critical constraint the Stuarts had laboured under was not that potential creditors were charging swingeing interest rates. Rather, fear of default meant that they instead strictly rationed the credit they advanced the Crown.Footnote ¹²

   Once these institutional arrangements changed after the Glorious Revolution there was a consequent increase in the expectation that lenders would get repaid, and so a massive expansion in the credit available to the English (soon British) government. The national debt rose from a nominal value of just under £2 million when James II vacated the throne (3.5 per cent of GDP), to £854 million at the end of the Napoleonic Wars (216 per cent of GDP).Footnote ¹³

2. (2) More pertinently for our current purposes, others have focussed on the underlying issue of property rights. Most commonly, it has been suggested that property rights in land had been secure since at least 1600, most notably by Gregory Clark.Footnote ¹⁴ His argument starts from the premise that if land rights were insecure and liable to expropriation by the Crown, then the price of land would be suppressed vis-à-vis the annual income that could be realised from it (i.e. the implied rate of return would increase). Such insecurity could have a demonstrable effect on land prices during this period. When Parliament disposed of the royal estates in the 1650s, they could only be sold cheaply due to the political uncertainty coincident to the property. Whereas private land was sold at an implied rate of return of just more than 5 per cent during this period, the lands confiscated by Parliament sold at an implied rate of return of 9.5 per cent.Footnote ¹⁵ Potential purchasers were clearly worried that if the Crown were restored it would seize back its old estates without compensation, and this is precisely what happened in 1660. With, however, this important exception, Clark purports to show using a dataset of land sales to charities that the implied rate of return to land was stable throughout the upheavals of the seventeenth century, and up to 1749. This suggests that land rights must have been reliably secure and Clark concludes that ‘to read the Glorious Revolution as ushering in a stable regime of taxes and property rights that laid the foundation for the Industrial Revolution is to write Whig history of the most egregious sort.’Footnote ¹⁶

   It is now commonly accepted that ‘secure property rights go back a long way in English history’,Footnote ¹⁷ possibly as far back as the 1170s and 80s, when a series of legal reforms stimulated the development of a land market.Footnote ¹⁸ Consequently, any further improvements in the security of property rights achieved in the aftermath of the Civil War or the Glorious Revolution, must have been ‘inconsequential’.Footnote ¹⁹ Tellingly, the point appears to have partially conceded by North and Weingast, who wrote in 2009 in reference to the period from the Conquest to the Glorious Revolution that ‘property rights in land did become more secure in England, and for most people they were very secure’, albeit with the caveat that for the ‘most powerful, ownership and tenure in land remained subject to conflict’.Footnote ²⁰

   Clark’s paper has been rightly influential and the point concerning the security of property rights prior to 1688 appears to have been at least partially conceded. As a preliminary, though, there are three reasons to suppose that Clark’s dataset, based on observations of charity lands, is not an apposite reflection of the land market as a whole. Firstly, the political costs involved with expropriating land designated for charitable uses was usually prohibitively high when compared with other, more convenient targets. For example, under the cover of a 1617 patent from the Crown (for which he had paid £8000), Sir John Townsend extorted fines from hospitals for ‘concealing’ land they allegedly held of the King.Footnote ²¹ On one occasion, James I even granted a hospital and its lands over to Townsend after they had held out against his importunities. The upshot was that Townsend was vilified in Parliament, his land grant revoked, as well as his patent at the end of James’s reign.

   However, when the opportunity arose, the Crown was capable of expropriating landed wealth on a massive scale. This is most dramatically illustrated by the dissolution of the monasteries (1536–41 and discussed in Chapter 2), when the Crown expropriated approximately one-quarter of the total landed wealth of England, the largest land transfer since the Norman Conquest. Later, political opponents of the Crown were effectively expropriated through massive fines. John Williams, Bishop of Lincoln and opponent of Archbishop Laud, was fined £10,000 in the Court of Star Chamber in 1636, and the loss of all income from his position as bishop. Although large fines could be remitted or mitigated, Charles I was reportedly determined to extract the fine in full, and an extent was placed almost immediately on Williams’s estates in Caernarvonshire, evidence that ‘the king is much displeased with him’.Footnote ²²

   This is not to imply that the English Crown was somehow atypical in its willingness to expropriate opponents or politically convenient targets – Henry VIII (r. 1509–45) was belatedly following the example of other Protestant monarchies in confiscating monastic properties (as had occurred in Sweden and Denmark at the end of the 1520s) – but simply to note that it occurred. Of course, for those who were not in conflict with the Crown, the chance of expropriation was negligible, although this did not prevent the Crown from playing a marginally subtler game. Wherever it espied the slightest opportunity for property rights to be re-drawn or liable to extortion, this was pursued. For example, Crown tenants were often accused of holding ‘defective’ titles, that they perhaps held land different in nature and/or extent from that stated in the deeds. If so, they would be invited to ‘compound’ (i.e. to pay a lump sum of money) for the discrepancy to be rectified and for their possession of the land to be left undisturbed. Although this process had begun under the Tudors, and in some cases likely justified by the scale of discrepancy, ‘the spirit in which the project was conducted changed’ under James I and even the tiniest omissions or mistakes in the deed were enough for the crown to claim that the title was defective and required composition.Footnote ²³ A continual effort to locate these defective titles was instigated and ‘James’s policy unsettled everyone occupying Crown land, and it is impossible to assess the numbers of small tenants so disturbed’.Footnote ²⁴

   Secondly, charities held land in perpetuity, and did not need to worry about the heritability of the estate for succeeding generations. Yet, it was at this point in time that the estate became most vulnerable to the exactions of the Crown. For those who held land by the tenure of knights service in capite, one of the two most common of the freehold tenures, the Crown could claim primer seisin when the land descended to the succeeding generation. In theory, this was equivalent to either a full year’s profits, provided the heritor was of full age when coming into their inheritance, or six months if they had been underage. They also had to pay a livery, another tax enabling them to take legal possession of the property (and usually the equivalent of six months profits from the land).Footnote ²⁵ In essence, these exactions can be seen as an archaic inheritance tax, albeit one that charities clearly would never have to pay, hence explaining in part why they could anticipate a greater return to landholdings held by knight service tenure than other landholders.Footnote ²⁶ Similarly, charities never ran the risk of leaving behind an underage heir who would enter wardship – as we shall see, a much greater risk to a family’s patrimony, than livery or primer seisin.

   All this had been understood – and exploited – for centuries. For example, the forty-third chapter of the 1217 Magna Carta prohibited tenants from gifting:

   land of his to any religious house in such a way that he gets it back again as a tenant of that house. Nor shall it be lawful for any religious house to receive anyone’s land to hand it back to him as a tenant. And if in future anyone does give land of his in this way to any religious house and he is convicted of it, his gift shall be utterly quashed and the land shall be forfeit to the lord of the fief concerned.Footnote ²⁷

   The purpose of these transactions had been for the tenant to interpose a religious house between themselves and their original feudal lord. In so doing, they could now arrange to hold the land on more favourable terms than had previously been the case (e.g. without liability to wardship). Meanwhile, as the land was now held of them by a religious house, the original feudal lord had lost forever the prospect of wardship or any other succession levies accruing to them.Footnote ²⁸

   Thirdly, an earlier exercise by Christopher Clay examining private land sales over the period 1650 to 1814 does report an increase in land prices compared with income.Footnote ²⁹ It was common at the time to report sale prices in terms of ‘year’s purchase’ – how many years income the sale price of the land was equivalent to. In the second half of the seventeenth century, land commonly sold at around 18 to 19 years’ purchase (i.e. it would take 18 to 19 years income to recoup the money spent acquiring the land). By the second quarter of the eighteenth century, years’ purchase of land had increased to around 25 years, and in the final quarter of the eighteenth century, to around 27 years. This might ostensibly support the North/Whig view of the Glorious Revolution, although this would admittedly oversimplify the analysis. Security of property rights was not the sole determinant of land prices; no one would suggest that the period between 1725–50 and 1775–1800 experienced an improvement in the security of property rights commensurate to the increase in land prices reported by Clay. Instead, Clay emphasises how sale prices were ‘anticipatory’ of what rents might be secured in the future, based, in turn, on the general increase of agricultural prices at the time.

3. (3) Other scholars broadly agree that the changes isolated by North and Weingast were significant, but that they cannot be attributed to the Glorious Revolution or its immediate aftermath. For example, the prerogative courts through which the Crown had exercised its judicial powers (specifically, the Court of Star Chamber and High CommissionFootnote ³⁰) were abolished by the Long Parliament in 1641, not in the aftermath of the Glorious Revolution (although an Ecclesiastical Commission with similar powers to that of the High Commission was briefly re-established by James II in 1686). The Court of Wards would also be abolished by Parliament in 1646.

   Similarly, as D’Maris Coffman has shown, many of the important fiscal developments highlighted by North and Weingast (Parliamentary control over public finances, creditor action capable of holding the executive to account, ascribing specific revenue streams to service specific debt instruments) all emerged during the 1640s under the Long Parliament and Commonwealth regimes, not after 1688.Footnote ³¹ Moreover, the period marked a decisive shift away from tax farming, replaced instead with an embryonic state bureaucracy that had exclusive responsibility for assessing and collecting taxes.Footnote ³² For instance, the Committee for Regulating the Excise, established under Parliament in 1643, routinely followed common-law procedure whilst constantly enjoining its own officers to act ‘for the best advantage to the state’, and dealt strictly with misconduct.Footnote ³³ Over the long eighteenth century, this bureaucracy would develop into a far-more effective means of revenue collection than the tax farm.Footnote ³⁴

   This coincides with the view of both many contemporaries and historians of the period, that the Glorious Revolution was an essentially conservative event, one which had preserved ‘protestantism and liberty’ from the looming threat of ‘popery and arbitrary government’ represented by James II and his new-born heir.Footnote ³⁵ The conspirators responsible for the Revolution had decidedly not sought to ‘[transform] government, the law, society [or] the status of individuals who composed the nation’.Footnote ³⁶ Rather, ‘the Revolution was largely an episode in patrician politics unrelentingly ‘conservationist’ in ideological, political and social effect’.Footnote ³⁷

4. (4) Other scholars have suggested that North and Weingast remain, broadly speaking, correct, and that something important happened in the aftermath of the Glorious Revolution. Steven Pincus and James Robinson, for example, observe that after 1688, that locus of executive and legislative authority shifted decisively to Parliament.Footnote ³⁸ This is evidenced both by the amount of time Parliament met after 1688 and by the amount of legislation it passed every year.

   This legislation could be of critical economic importance. Prior to the Glorious Revolution, for example, Dan Bogart has shown how an uncertain regulatory environment inhibited investment in transport improvements which was most commonly delegated to private investors, notionally empowered by an Act of Parliament or patent to undertake the project and to toll users in payment.Footnote ³⁹ After the Glorious Revolution, though, the regulatory framework improved significantly. Now Parliament was the sole arbiter and source of transport improvement rights, with the Crown retaining little influence. Consequently, there was a dramatic and sustained increase in the level of transport investment in the immediate aftermath of the Glorious Revolution, yielding significant reductions in travel times long before the appearance of railways.Footnote ⁴⁰ Whereas in 1680, the journey to London from Manchester or Leeds would have taken around 100 hours, by 1830 either journey took less than 25 hours.Footnote ⁴¹

   In a similar vein, Julian Hoppit has emphasised how chimerical the notion of absolute security in property rights was, and how frequently Parliament intervened to re-draw or expropriate property rights after 1688, using as examples the transfer of public debt into stock in the ill-fated South Sea Company, the abolition of heritable jurisdictions in Scotland and the abolition of slavery (and we can also include here compulsory purchase rights awarded to transport investors). What really mattered was the ability of Parliament to re-draw property rights in a manner that at least aspired to be judicious and contestable, and where ‘losers’ would be compensated.Footnote ⁴² This is what facilitated the construction of new infrastructure and the re-organisation of farming through enclosure acts; Hoppit concluding that ‘the considerably expanded ability to alienate property was a profound development in property rights under the Revolution constitution’.Footnote ⁴³

5. (5) It has been suggested that despite all this, any link between the Civil War/Restoration/Glorious Revolution and the Industrial Revolution must be a tenuous one. Bob Allen, for example, has dismissed the potential role of institutions asserting that ‘it would not have been profitable to invent the industrial revolution in France no matter how good were French institutions. It was the prices that were wrong in France’.Footnote ⁴⁴ However, building on the example of transport previously discussed, it is readily demonstrable how institutions had a direct impact on prices: between 1680 and 1830, freight costs declined by nearly 60 per cent in England, contingent on improvements in transport links enabled by an improving regulatory framework.Footnote ⁴⁵

   More broadly, there is a growing body of pan-European, quantitative evidence to support the essential intuition that it is institutional arrangements which are the primary arbiter of long-run economic performance. For example, regression analysis by Alexandra De Pleijt and Jan Luiten van Zanden establishes that there was a strong positive association between parliamentary activity (as measured by the number of years a Parliament sat each century) and economic development in Europe over the period 1300–1800.Footnote ⁴⁶ Similarly, Mark Dincecco, has shown that centralised and limited regimes were able to secure significantly higher revenues per capita than fragmented and absolutist ones. Transitions in politico-fiscal regimes, from ‘fragmented absolutist’ through to ‘centralised limited’, yielded dramatic increases in revenues available to the state.Footnote ⁴⁷ These revenues could then be used to erect and sustain institutions of local and national government that underwrote long-term economic development.Footnote ⁴⁸

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It is at this point that we can re-introduce wardship into our account. Constituting the right of the Crown to take temporary custody of an underage heritor and their estate until they reached the age of their majority, in most instances wardship posed no threat to the ward’s security of land title: it would be returned when they reached their age of majority. The Crown usually sold these rights on and if a ward had come of age but were in dispute with their guardian, they might be prevented from taking legal possession of their estate until the matter was resolved – given this leverage, these disputes were usually resolved to the guardian’s satisfaction.Footnote ⁴⁹ A critical exception, however, were unwed female wards. When women married, their property passed into the hands of their husband. Wardship did not affect this. What wardship did affect was who made the decision concerning the young lady’s marriage. Ideally, it would have been a love match of her choice,Footnote ⁵⁰ but in practice the economic interests of her family and kin could not be neglected, and the disposition of wealthy brides could be akin to a commercial transaction.Footnote ⁵¹ When, however, the heiress had entered wardship and been sold to a third party, she and her family lost any formal influence in this transaction. Unless they were able to re-acquire her through purchase prior to her marriage, she and her estate would have passed away permanently from the control of her family.

Neither can we conflate property rights with land title. It incorporates a bundle of related rights: the right to decide how the property might be used, the right to secure income from the property, the right to transfer the property to others, and the right to protect the property from predation or damage by other parties. This book will show how the English Crown, and perhaps more so its officers, transgressed all these rights on a significant scale. Disputes concerning property rights also need to be adjudicated ‘fairly’, by a set of transparent criteria that are consistently implemented. Again, we will see how the Court of Wards subverted or abrogated previous legal precedent and/or parliamentary legislation, where this was found to conflict with the Crown’s determination to maximise its revenue from wardship. Indeed, concern for the Crown’s feudal revenue was the pre-eminent influence on the development of English land law during this period.

Moreover, if we were to examine wardship exclusively through the lens of property rights, we would overlook what was probably most obnoxious to contemporaries – the state seizing custody of a child from a recently bereaved family and then selling them on to the highest bidder. The seizure of the child might be said to contravene freedom of association, although contemporaries preferred the analogy of the cattle market. An exclusive focus on property rights would also entail losing sight of a second critical point concerning institutional change during this period: the regressing fiscal capacity of the English state between 1509 to 1642.Footnote ⁵² While in theory tax collection should have become easier as the economy became more urbanised and monetised, real per capita tax revenues barely increased over this long period.Footnote ⁵³ Wardship illustrates why this regression occurred. Commensurate with the burden it imposed on heirs and their families, wardship might have been an immensely productive source of revenue – but due to maladministration and embezzlement only a very small proportion of potential revenues actually accrued to the Crown. Far more was siphoned away by the Crown’s own officers and by those third parties who were able to purchase wardships. This was symptomatic of other fiscal instruments such as the industrial monopoliesFootnote ⁵⁴ and the customs and exciseFootnote ⁵⁵ where the monies actually raised by the Crown and available for it to disburse constituted a fraction of the fiscal burden that were imposed by their collection. Most of the potential proceeds were lost to those responsible for their collection. To compound matters, for all the political cost the Crown incurred in raising what funds it could, and the economic cost it imposed in doing so, it was also incapable of spending them effectively. For instance, the increase in revenue secured during the Personal Rule (1629–40) did not translate into an enhanced military capacity. The English state proved incapable of providing internal order, viz., the growing encroachment of pirates into home waters during the 1630s, and external security, viz., the rebellion and invasion from Scotland known as the Bishop’s Wars (1639–40) and the consequent outbreak of the English Civil War. The Court of Wards is the only institution that enables us to see both how direct taxes were being raised, and how they were being assigned, offering a unique insight into the heedless profligacy of the Crown.Footnote ⁵⁶

This gives added emphasis to the improvement in fiscal capacity secured by the Long Parliament and Commonwealth regimes, relative both to its Stuart precursor and to its European counterparts.Footnote ⁵⁷ These improvements continued under the Restoration regime and after 1688. Especially important was the drawing down of tax farming replaced with a professional, salaried, state bureaucracy. Patrick O’Brien cautions this was not yet a ‘rational, incorruptible, efficient Weberian-type bureaucracy’ but that it did form ‘an embryo system [for] more efficient monitoring of the realm’s all-important fiscal affairs’.Footnote ⁵⁸ This has not been universally regarded as a boon. Gregory Clark has emphasised how the improved capacity of the English/British state to raise funds, and the increased fiscal burden this implied, ‘had an immediate negative effect’, ostensibly illustrated by the increase in tax revenues as a percentage of national GDP to more than 10% soon after the Glorious Revolution.Footnote ⁵⁹ However, much of this apparent increment to the English Treasury was achieved not by increasing the fiscal burden on the economy, but by minimising the fiscal ‘leaching’ of inordinate collection costs incurred by the early Stuarts.Footnote ⁶⁰ It is this leaching which we will examine in the context of wardship. It is also worth bearing in mind what the British state was able to accomplish with these revenues after 1688 – global hegemony, and with it the access to foreign goods, production inputs and markets this entailed.

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The Court of Wards has not been systematically appraised since the 1950s, when monographs by H. E. Bell and Joel Hurstfield were first published.Footnote ⁶¹ This is partly testament to Bell and Hurstfield’s contributions. Reviewing the latter, A. L. Rowse was moved to observe that ‘we now have this subject [wardship] rounded up and effectively disposed of’.Footnote ⁶² Thankfully, subsequent historians have not been so complacent and there are facets of the Court that have since been examined in greater detail, especially its treatment of Catholics,Footnote ⁶³ the insane,Footnote ⁶⁴ a study of wardship in Somerset,Footnote ⁶⁵ and a study on feudalism in the period leading up to the establishment of the Court.Footnote ⁶⁶ There have also been important contributions by legal historians, which has shown how the Crown’s efforts to increase revenues from the feudal incidents led to a wholesale refashioning of English land law.Footnote ⁶⁷ The historiography of wardship in Ireland follows a similar chronology, with two important articles appearing in 1956 and 1960,Footnote ⁶⁸ but it has subsequently received only passing attention. For Scotland, wardship is discussed by Julian Goodare in his wider work on Scottish government during the early modern period.Footnote ⁶⁹ Still, wardship has been almost entirely overlooked by economic and institutional historians working on the period and so this book attempts to do something new – to incorporate a history of wardship into wider discussions of institutional and economic change during the sixteenth and seventeenth centuries, changes which in some analyses led to the industrial revolution in the eighteenth century.

Chapter 2 provides an analytical survey of the development of wardship in England from 1066 to 1540, when the Court of Wards was placed on a legislative establishment. The first section describes the medieval origins of wardship, before discussing its revival under Henry VII (r. 1485–1509) – assuredly for the revenues it could bring – and the accrual of a royal bureaucracy to manage wards and their lands. The second section focusses on the period from 1526 to 1540, opening with the break from Rome, which would initiate a series of events – the dissolution of the monasteries, the sale of monastic lands by feudal tenures, the Statute of Uses (1536), the Statute of Wills (1540) and finally the Court of Wards Act (1540) – that dramatically altered both the distribution of freehold land and the legal forms by which it could be held and transferred. This in turn would greatly increase the incidence of wardship; the Court quickly became a central part of the royal administration and unlike the other revenue courts founded by Thomas Cromwell,Footnote ⁷⁰ it escaped abolition in the 1550s.

With the Court now a fixed point in English government, Chapter 3 provides a detailed overview of the Court during its entire period of peacetime operation (from 1540 to 1642). The first section covers the period from 1540 to 1610, roughly coterminous with the masterships of William Cecil, 1st Baron Burghley (master from 1561 to 1598) and his son Robert Cecil, 1st Earl of Salisbury (1599–1612). Both Burghley and Salisbury were, in effect, chief ministers to Elizabeth I (r. 1558–1603) and James I (r. 1603–25) respectively, serving as Secretary of State and Lord High Treasurer at various times, in conjunction with their mastership at the Court of Wards. Their time at the Court also coincided with a long-term stagnation in its revenues, despite a general increase in the number of children and estates entering the jurisdiction of the Court; it seems the Court, with its copious supply of patronage opportunities, was now being used primarily to secure the loyalty of the nobility and political classes to both the monarch and the Cecil’s personal ascendancy, rather than as a means of maximising Crown revenue. The second section covers the period from 1610, marking the failure of Robert Cecil’s negotiations with Parliament over the Great Contract (which would have abolished wardship in return for a set annual revenue from Parliament), and the time when James I and Charles I took a greater personal involvement in the operation of the Court. In their increasingly urgent search for revenues, they did succeed in monetising more of the opportunities arising from the Court, although still, wardship remained a tremendously inefficient and invidious means of raising revenues.

Chapter 4 discusses the officers and personnel of the Court, particularly how they benefited from their appointment at the Court. In so doing, the chapter reveals another additional cost wardship imposed – as much as the Crown profited from wardship, most of the proceeds were secreted away by its officers. This started at the very top; the Court’s Masters certainly accepted bribes in return for bestowing wards, and ended at the very bottom with the Court’s local county officer, the feodary, and his servants. Chapter 5 explains that as grossly inefficient wardship was as a means of raising revenue, it was representative of the Stuart fiscal state. The same observation might be made of any other of the state’s fiscal expedients, such as monopolies of production, for example, or purveyance. And the state’s fiscal capacity atrophied to the extent that it was incapable of providing internal and external security.

Chapter 6 examines how the Court worked in its judicial capacity. The Court dealt with a surprisingly wide variety of cases and for a period, certainly under the Mastership of Burghley, usually did so in a tolerably even-handed, equitable, manner. Under the Stuarts, however, as they increasingly sought to maximise their revenues from wardship, so the Court’s legal functions were relegated to its fiscal functions – local juries were strong-armed into finding tenures beneficial to the Crown and producing wardships; previous legal precedent was jettisoned where it was found convenient to do so.

Of course, given the preceding argument, one would anticipate tangible economic consequences from the re-imposition of wardship. Chapter 7 begins by surveying some of these consequences. One obvious negative consequence was the opportunities for waste wardship afforded and this is touched on throughout the book as well. Similarly, the complexities of tenure, allied with an uncertain and arbitrary regulatory framework, stymied land improvements (with specific reference to the draining of the Fens). A third negative consequence was how the complexities of tenure encumbered the conveyancing of land (significant given the demonstrable importance of transaction costs for land usage and productivity).Footnote ⁷¹ While these are all phenomena that can be observed, neither can they be measured. Instead, to try and provide a quantitative handle on the effects of wardship, the second part of the chapter examines sales of Crown Land, specifically during the reign of Mary (1553–58). It demonstrates that those freehold tenures which entailed wardship were sold at a 10 per cent discount relative to those that did not (socage) – significant in what was still a predominantly agrarian economy and where land was the pre-eminent asset class and store of value.

Wardship could affect surviving families in a myriad of ways; one family’s experience could be very different from another’s. For the lucky, the child and their estate would be returned at a reasonable price. For the unlucky, the child and their lands would be sold on to a third party who might exploit both without scruple. To try and capture some of the social and familial costs wardship imposed – inadequately captured from a purely economic perspective – Chapter 8 traces out the different stages of wardship and some of the surviving testimony and anecdotes from those unfortunate to enter wardship

Institutional economics is increasingly concerned with explaining not only how ‘efficient’ institutions emerge, but also how inefficient ones persist. The book will frequently have cause to reference the unpopularity of wardship in England and Chapter 9 opens with a more focussed description of contemporary responses to it (including clergy, dramatists and foreign observers). However, wardship created enough ‘winners’ – Crown officers, the nobility, those with the nous to acquire wardships – to ensure that there was a political corpus to maintain it. Moreover, the increasing propensity to return wards to their families ameliorated matters and it does not feature prominently in Parliament’s ‘Grand Remonstrance’ of 1641, a critical moment in the lead up to the Civil War. The English Civil War, though, is now rarely viewed in isolation of the broader British context and the chapter extends the analysis to Scotland and Ireland; in both countries, wardship was instrumental in the disintegration of royal power. In Scotland, Charles I’s efforts to re-write the land law and extend his rights to wardships via an Act of Revocation (1633) was considered to be ‘the ground stone of all the mischeiffe that folloued after’ (sic), an arch reference to the rebellion that began in Scotland in 1638.Footnote ⁷² In Ireland, wardship and the entire land law were deployed as a means of religious conversion. Protestants were granted land in socage tenure while Catholics were (re)granted their land in knight service. Thus, it was only Catholics who were usually affected by wardship – but it was usually Protestants who were their guardians. Wardship was thus an integral component of the bitter religious conflict that erupted in 1641. It was these rebellions which ultimately precipitated the English Civil War, that offered Parliament the opportunity to finally abolish the feudal tenures in 1646, an abolition confirmed at the Restoration of the Crown in 1660.

The conclusion returns to the book’s central argument – that wardship, the arbitrary burdens it imposed on those unfortunates enmeshed, the wider economic costs ensuing, all while producing so little benefit to the Crown, was representative of the wider Stuart state. It is easy to envisage how a nascent industrial revolution might have been smothered by the Stuart fiscal state, perhaps via monopolies being awarded to undeserving favourites, or contracts and property rights being re-drawn to suit the perceived interests of the Crown. Ultimately, the conclusion will make the case that the industrial revolution could not have started in England during the eighteenth century, without the constitutional changes of the seventeenth century.